ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OFAPPEALS FOR THE THIRD CIRCUIT

[June 20, 2005]

Justice OConnor, concurring.

I write separately to put to rest one
concern. The dissent worries that the Courts opinion
imposes on defense counsel a rigid requirement to review
all documents in what it calls the case file of any
prior conviction that the prosecution might rely on at
trial. Post, at 1 (opinion of Kennedy, J.).
But the Courts opinion imposes no such rule. See
ante, at 14. Rather, todays decision simply
applies our longstandingcase-by-case approach to
determining whether an attorneys performance was
unconstitutionally deficient under Strickland v.
Washington,466
U.S. 668 (1984). Trial counsels performance in
Rompillas case falls short under that standard, because
the attorneys behavior was not reasonable
considering all the circumstances. Id., at 688.
In particular, there were three circumstances which made the
attorneys failure to examine Rompillas prior
conviction file unreasonable.

First, Rompillas attorneys knew
that their clients prior conviction would be at the very
heart of the prosecutions case. The prior
conviction went not to a collateral matter, but rather to one
of the aggravating circumstances making Rompilla eligible for
the death penalty. The prosecutors intended not merely to
mention the fact of prior conviction, but to read testimony
about the details of the crime. That crime, besides being
quite violent in its own right, was very similar to the murder
for which Rompilla was on trial, and Rompilla had committed the
murder at issue a mere three months after his release from
prison on the earlier conviction. In other words, the
prosecutor clearly planned to use details of the prior crime as
powerful evidence that Rompilla was a dangerous man for whom
the death penalty would be both appropriate punishment and a
necessary means of incapacitation. Cf. App. 165166
(prosecutors penalty-phase argument). This was evidence
the defense should have been prepared to meet: A reasonable
defense lawyer would have attached a high importance to
obtaining the record of the prior trial, in order to anticipate
and find ways of deflecting the prosecutors aggravation
argument.

Second, the prosecutors planned
use of the prior conviction threatened to eviscerate one of the
defenses primary mitigation arguments. Rompilla
was convicted on the basis of strong circumstantial evidence.
His lawyers structured the entire mitigation argument around
the hope of convincing the jury that residual doubt about
Rompillas guilt made it inappropriate to impose the death
penalty. In announcing an intention to introduce testimony
about Rompillas similar prior offense, the prosecutor put
Rompillas attorneys on notice that the prospective
defense on mitigation likely would be ineffective and
counterproductive. The similarities between the two crimes,
combined with the timing and the already strong circumstantial
evidence, raised a strong likelihood that the jury would reject
Rompillas residual doubt argument. Rompillas
attorneys reliance on this transparently weak argument
risked damaging their credibility. Such a scenario called for
further investigation, to determine whether circumstances of
the prior case gave any hope of saving the residual doubt
argument, or whether the best strategy instead would be to
jettison that argument so as to focus on other, more promising
issues. Cf. Yarborough v. Gentry,540 U.S. 1, 7 (2003)
(per curiam);Bell v. Cone, 535 U.S. 685, 700
(2002) (noting that sound tactical judgment may sometimes call
for omitting certain defense evidence or arguments).

Third, the attorneys decision
not to obtain Rompillas prior conviction file was not the
result of an informed tactical decision about how the
lawyers time would best be spent. Although
Rompillas attorneys had ample warning that the details of
Rompillas prior conviction would be critical to their
case, their failure to obtain that file would not necessarily
have been deficient if it had resulted from the lawyers
careful exercise of judgment about how best to marshal their
time and serve their client. But Rompillas attorneys did
not ignore the prior case file in order to spend their time on
other crucial leads. They did not determine that the file was
so inaccessible or so large that examining it would necessarily
divert them from other trial-preparation tasks they thought
more promising. They did not learn at the 11th hour about the
prosecutions intent to use the prior conviction, when it
was too late for them to change plans. Rather, their failure
to obtain the crucial file was the result of inattention,
not reasoned strategic judgment. Wiggins v.
Smith, 539 U.S.
510, 534 (2003). As a result, their conduct fell below
constitutionally required standards. See id., at 533
([S]trategic choices
made after less than complete investigation are
reasonable only to the extent that reasonable
professional judgments support the limitations on
investigation (quoting
Strickland, 466 U.S., at 690691)).

In the particular circumstances of
this case, the attorneys failure to obtain and review the
case file from their clients prior conviction did not
meet standards of reasonable professional
judgmen[t]. Id., at 691. Because the
Courts opinion is consistent with the case-by-case examination of the
evidence called for
under our cases, Williams v. Taylor, 529 U.S. 362, 391
(2000), I join the opinion.